THE MONTHLY ADJUSTMENT

WHY MEDIATION

By: Mark J. Bunim, Case Closure LLC., New York, NY

Tom and Chris were law partners for fifteen years. Tom was 20 years older than Chris and had brought Chris to the firm. Originally, all the clients were Tom’s and he had built the practice. Now Tom was in his late 60s and the clients had shifted their loyalty to Chris. In fact, the clients never called Tom anymore at all. Tom still went to court here and there, but no longer worked every day.

One day Tom was supposed to go to court on a case but forgot and the judge, furious that no one from the firm appeared, entered a default judgment against the client. The client, upon finding out, fired the firm. A week later, Chris walked in to the office and found Tom asleep as his desk.

Chris asked Tom to retire, and he refused. Chris told him, in a state of anger, to get out of the office and never come back. Tom walked out of the office and did not appear again. One morning Chris walked into the office and a process server was there and handed Chris a lawsuit filed by Tom for breach of the partnership agreement, and seeking dissolution and equal division of the assets and ongoing business, including some contingency cases that Chris was handling and had nothing to do with Tom.

Chris and Tom had reached a “Tipping Point” (by the criteria of Malcolm Gladwell). Their fifteen year business marriage was over and now they were about to engage in a prolonged legal battle that would take years to resolve, would require the expenditure of tens of thousands of dollars in legal and expert fees, would require the devotion by each of hundreds of hours away from their business to prepare for and engage in the litigation process, including educating the attorneys on their respective positions, participating in depositions and pre-trial court sessions, preparing to testify a trial and sitting through the trial itself. In the end, a judge whose docket was full with many matters, and a jury, most of whose members had little understanding of the nuances involved in the partnership, would be making the final decisions.

The right course for Tom and Chris to take, was mediation. Mediation is a process where using a trained, independent mediator, familiar with the law, the parties engage in a give and take to resolve their dispute in a less costly, time-efficient manner, where the parties themselves using the creative talents of the mediator, would be able to determine the result and craft a solution to enable them to get on with their lives.

Mediation preserves the “four Cs”:

A. Control—The parties, not a judge or jury are in charge. An agreement/final solution is enacted when it is acceptable to both
sides.

B. Constructive Dialogue—Instead of wasting money in drafting inciteful papers and motions and battling in open court, the dispute remains private and more civil and the dialogue is geared solely toward enabling an approach that will move things forward and bring about a solution.

C. Confidentiality – Mediations are confidential. This encourages the parties to speak freely. The mediation session and all briefs produced for the mediation can never be used as evidence in any subsequent proceeding.

D. Creativity- A mediator will help the disputants bring about a solution. The possibilities are endless and the process will involve the exploration of possible outcomes that no court or jury would ever delve into. Coming up with creative solutions is not the job of the court system, but it is the primary job of a mediator. Mediators are trained to think “outside the box.”


Medaition is particularly appropriate in claims where insurance funds will pay all or part of a claim. It enables the plaintiff, the insured, the claims people (with settlement authority) and their respective attorneys to resolve disputes in an efficient , time-saving way. Most mediations resolve the cases within 90 days of commencement of the mediation process. The key is always thorough preparation. This is accomplished by educating the mediator of the various nuances that exist, not only with the case itself, but with the personalities of all the parties involved, and the obstacles to settlement. A good mediator will conduct extensive, separate pre-mediation conferences with the parties and their counsel, so that on “mediation day” the mediator has no surprises and the parties are in the frame of mind to get to work and resolve the matter. In that respect, it is crucial to the outcome that the right people attend the mediation. No one should have to make a phone call to get approval of someone else; all the players need to be present, in the room. With the “whole team” present and committed to staying at the mediation, resolution is usually reached in one or two days.

At the end of the mediation, an agreement is usually reached which is reduced to writing and signed by the parties. Sometimes the mediator drafts the agreement or the mediator and counsel for all parties may draft an MOU (Memorandum of Understanding) which is done right at the mediation and signed by all participants. This document is a binding contract, which serves as the blueprint for a formal settlement agreement.

Would your clients rather spend the years and agony of going through a litigation, or would an expedited, creative and confidential process best serve their interests?



Mark Bunim is the managing director of Case Closure LLC, a mediation and arbitration company with offices in Manhattan Long Island and (www.CaseClosure.com). He can be reached at : Bunim@CaseClosure.com.